A general resource for employees and management alike, covering issues old and new in the law of Ontario employment relationships.

Friday, March 2, 2012

Pate v. Galway-Cavendish and Harvey Update

Last May, I posted this entry about the Court of Appeal sending Pate v. Galway-Cavendish and Harvey back for a trial on malicious prosecution and punitive damages. To recap, Mr. Pate was the Chief Building Official for the Township of Galway and Cavendish until an amalgamation at the end of 1998. The Chief Building Official for the resulting municipal corporation, former police officer John Beaven, investigated certain apparent 'discrepancies' involving permit fees which Pate supposedly collected but didn't remit, the implication being that Pate had been defrauding the municipality.

Less than three months after the amalgamation (in March '99), Pate was told that, if he resigned, the police wouldn't be called. He refused to resign, and was dismissed and charged criminally. In December 2002, he was acquitted of all charges. The discrepancies were actually innocent record-keeping issues, not indicative of fraud, and not only that but the municipality had known (and in many cases not disclosed to police) the innocent explanations for the misconduct. For example, in one case the records were kept under a different name because the fee had been paid by the property-owner's son-in-law. Mr. Pate noted this in his journal, but the journal was taken from him when he was dismissed and not disclosed to police. Other records had been lost in an office move, another fact not disclosed to police. Finally, one of the subject transactions had been inquired into years before, with the municipality concluding that Pate had not done anything wrong...another fact not disclosed to police.

In 2009, the matter first went to trial, with the trial judge making an award of pay in lieu of notice, with a Wallace bump-up (by that time somewhat controversial), and a modest award of punitive damages (finding that he could not award more than $25,000 as such), but declining to find malicious prosecution. In April the Court of Appeal found that the judge erred in his consideration of the wrongful dismissal claim and didn't adequately explain why he limited the punitive damages to $25,000, and ordered a new trial on these issues.

A little bit of a strange feature of the Court of Appeal's decision was an offer to direct the new trial to be conducted before the same trial judge. I didn't understand that at the time; it might be more cost-effective, but ordinarily you don't want to go back to the same judge who decided the matter wrongly in the first place.

I now understand that, however: Mr. Pate passed away in January 2011. He would have been in his mid fifties. Without Mr. Pate present in person, it would have been far more complex to conduct a full trial of these issues before a new judge.

In November 2011, Justice Gunsolus released his decision on punitive damages (though with no mention of malicious prosecution), increasing the punitive damage award to $550,000. That's a pretty big win for the estate, but again I would highlight the "Justice Delayed" aspects of this case, as I did in my last post. He was dismissed in early 1999. The criminal proceedings continued until late 2002. His personal life fell apart in that time. The wrongful dismissal case took six more years to get to trial, being heard more than a decade after the termination. The appeal was heard in late 2010, with the decision being released in April 2011, and even with the new trial moving in quite an expedited fashion, being heard and decided in November 2011, it was still more than 12 and a half years after the dismissal. In which time the plaintiff actually passed away, giving real meaning to the phrase "Justice delayed is justice denied."

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